State of Kerala & Others v. A.K. Chandrika

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WA.No. 245 of 2010() -------------------AGAINST THE JUDGEMENT/ORDER IN WPC.23620/2009 Dated 17/12/2009 .................... APPELLANT(S): RESPONDENTS 1TO 3 IN THE W.P.(C0 ---------------------------------------------- 1. THE STATE OF KERALA,REPRESENTED BY THE SECRETARY,GENERAL EDUCATION(B)DEPARTMENT. 2. THE COMMISSIONER FOR GOVERNMENT EXAMINATIONS,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, KERALA CO-OPERATIVE DEPARTMENT, THIRUVANANTHAPURAM. BY GP, SMT. ANU SIVARAMAN RESPONDENT(S): PETITIONER IN W.P.(C) ------------------------------------ A.K.CHANDRIKA,ANANDA MANDIRAM, NOORANADU.P.O,JOINT REGISTRAR/ADMINISTRATIVE MANAGER,KERALA RUBBER MARKETING FEDERATION LTD, GANDHI NAGAR,KOCHI. ADV. SRI.A.N.RAJAN BABU FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON 23/3/2010 DELIVERED THE FOLLOWING: ## **K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 245 of 2010** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 23[rd] day of March 2010.** ## **JUDGMENT** ## **Joseph Francis J.,** The appellants herein are the respondents in W.P.(C) No. 23620 of 2009 and the respondent herein is the petitioner in that Writ petition. 2. The Writ petition is filed by the petitioner challenging Ext.P30 order of the 2[nd] respondent rejecting the application for correction of date of birth in the S.S.L.C. book. 3. The brief facts of the case are stated below. The petitioner is now working as Joint Registrar in the Co-operative Department. The petitioner had given an application for correction of date of birth in S.S.L.C. book in the year 1980. The above application was 2 ## **W.A. No. 245 of 2010** considered and after verification of all the records the 2[nd] respondent passed Ext.P10 order rejecting application for alteration of date of birth from 24.12.1954 to 14.1.57. The appeal filed by the petitioner against the order was also rejected by Ext.P11 order. The above order was passed on an appeal filed by the petitioner after 4 years from the date of rejection of Ext.P10 order. The appeal filed by the petitioner was rejected on the ground of delay and on merits. After a lapse of 5 years the petitioner filed a representation before the Government for reviewing the Ext.P11 order dated 19.2.87. The Government by Ext.P12 order dated 31.1.95 rejected the review petition on the ground that the entire facts are be considered in Ext.P11. 4. The petitioner after a lapse of 8 years filed another representation before the Government and the Government passed Ext.P16 order on 30.10.04 rejecting Ext.P13 which is a second review petition. Even though the petitioner had filed the 2[nd] review ## **W.A. No. 245 of 2010** 3 which is not maintainable under the provisions of the Kerala Education Rules, the High Court of Kerala set aside the impugned orders and the respondent was directed to pass orders in the application for correction of date of birth entered in the S.S.L.C.book on the basis of the materials on record. 5. The Government subsequently passed Ext.P27 order rejecting the application for correction of Date of birth in the S.S.L.C. certificate on the ground that she failed to furnish S.S.L.C. certificate of her elder sister and her younger sister. The High Court by Ext.P28 judgment directed the petitioner to produce the originals of the S.S.L.C. books of the persons mentioned above and after going through the above, directed the Government to pass orders on merits adverting to the contentions of the parties. The Government after a consideration of the entire facts and circumstances passed Ext.P30 order in which it was stated that the petitioner was admitted to Std.I in Govt. LPS Erumakuzhy on 2.6.1961 with date of birth as ## **W.A. No. 245 of 2010** 4 24.12.1954. The date of birth as per the birth certificate is 14.1.1957. If the request is allowed, the applicant would become an under aged student at the time of admission in Std.I i.e., having only 4 years 4 months and 18 days of age which is strictly against the provisions contained in Rule 5 Chapter VI of Kerala Education Rules (for short “KER”). The rule states that no child who has not completed five years of age as on the first June of the year of admission shall be admitted to any school except pre-primary school and as per rule 10B Chapter VI KER, a pupil promoted to any standard if subsequently found to be under aged for admission to that standard shall not be promoted from the standard till the pupil attains the age prescribed for that standard. 6. The writ petition filed by the petitioner challenging Ext.P30 order was heard and the learned single judge allowed the writ petition on the ground that the reasoning in Ext.P30 order by the Government relying upon Rule 5 of Chapter VI cannot be 5 ## **W.A. No. 245 of 2010** appreciated. There is a further direction to the 2[nd] respondent to pass orders in the light of the directions after considering the materials produced by the petitioner. It was also observed that emphasis should be made to find out whether the entry in the S.S.L.C. book as 24.12.1954 is correct or not. 7. Aggrieved by the judgment of the learned Single Judge, the above appeal is preferred by the respondent. 8. Heard the learned Government pleader appearing for the appellants and the learned counsel for the respondent. 9. The learned Government Pleader submitted that the judgment of the learned Single Judge is against the provision of the KER and is liable to be set aside. The learned Government pleader submitted that the date of birth of the petitioner is entered in S.S.L.C. book as 24.12.1954. The same is also been entered in the Service book. The petitioner wants the above date of birth to be corrected as 14.1.1957. The Commissioner for Government 6 ## **W.A. No. 245 of 2010** Examination by Ext.P30 order has found that if the above request is allowed the petitioner becomes an under aged student at the time of admission in Std.I having only 4 years, 4 months and 18 days which is against Chapter VI Rule 5 of the KER. Rule 5 of the Chapter VI of the KER states that “no child who has not completed 5 years of age as on 1[st] June of the year of admission shall be admitted to any school except pre-primary schools.”. Hence the judgment of the learned Single Judge is against Chapter VI Rule 5 of the KER and is liable to be set aside, the learned Government pleader submits. 10. It is further submitted that even if all the records of the siblings are produced and verified, the Commissioner cannot pass orders merely on the basis of the factual details and the Commissioner had to strictly follow the provisions of K.E.R. in arriving at a final conclusion and thus the judgment of the learned Single Judge directing the commissioner to pass orders on the basis 7 ## **W.A. No. 245 of 2010** of the materials on records without following Chapter VI Rule 5 of K.E.R. is illegal and therefore liable to be set aside. 11. The learned Government pleader submitted that the learned Single Judge ought to have referred the matter to the Division Bench in view of the two conflicting judgments of this court. Learned counsel for the respondent supported the judgment of the learned Single Judge. 12. There is no dispute that the petitioner Smt. A K Chandrika was admitted to Std.I in G.L.P.S., Erumakuzhy on 2.6.1961 with the date of birth as 24.12.1954. The date of birth as per birth certificate produced is 14.1.1957. If the date of birth is changed to 14.1.1957, she would attain the age of 4 years, 4 months and 18 days at the time of admission to Std.I on 2.6.1961. 13. Chapter VI Rule 5 of the KER provides that no child who has not completed 5 years of age as the 1[st] June of the year of admission shall be admitted to any school except pre-primary 8 ## **W.A. No. 245 of 2010** school. Chapter VI Rule 10B of KER provides that a pupil admitted to any standard, if subsequently found to be underaged for admission to that standard, he /she shall not be promoted from the standard in which he/she is studying at the time of detection of the irregular admission till he/she attains the age prescribed for the standard to which he/she is to be promoted and the promotions shall be effected only along with the other pupils provided he/she is otherwise eligible for promotion. Provided that nothing in this rule shall apply to pupils admitted to any Standard- - (i) before the school year 1973-74, or (ii)in relaxation of the minimum age rule granted by competent authority. 14. Therefore, it is clear that the above Rule 10B of K.E.R. is not applicable to the present case as the admission was before 1973- 74. 9 ## **W.A. No. 245 of 2010** 15. Chapter VI Rule 3 of K. E. R. provides that the name of a pupil, entered in the Admission Register shall not be altered except with the sanction of the Authority specified by the Government in this behalf by notification in the Gazette. 16. Rule 3(2) provides that if the Authority satisfied after necessary enquiries that the change applied for could be granted, he will issue an order to make the alteration. 17. Entries in the birth and death Register are admissible in evidence and it is conclusive evidence unless disproved in view of Section 35 of the Evidence Act. Chapter VI Rule 3 of KER does not say that date of birth of a pupil entered in the admission register cannot be altered if the original age of the pupil at the time of admission is less than 5 years. In the present case, the petitioner in the Writ petition was admitted in the school on 2.6.1961 based on the date of birth given as 24.12.1954. 10 ## **W.A. No. 245 of 2010** 18. According to the petitioner, her correct date of birth as per the birth Certificate issued by the Panchayat is 14.1.1057. As held by this Court in Ext.P17 judgment, if the date of birth of the petitioner is 24.12.1954 as entered in her S.S.L.C. book, the difference between her elder sister Smt. K.Radhamony and the petitioner would be less than one month and the petitioner would be elder the said sister. 19. No doubt, the Government Pleader would submit that it is true that Rule 3 of Chapter III permits correction of date of birth on the basis of materials and on the basis of sanction given by the Government. She would submit that it can only be understood as meaning that correction is permissible only when such correction does not result in any contravention of the Rules. In other words, if a correction is made, it must be a case where the correction does not result in t he infraction of any Rule, in particular Rule 5. Thus, 11 ## **W.A. No. 245 of 2010** correction based on material and which does not violate Rule 5, is what is permissible. 20. The learned Single Judge who decided the matter and who rendered the Judgment in **K K Nandakumaran v. Joint Commissioner for Government Examinations, Trivandrum** (1976 KLN Case No. 158 Page 178) held as follows: “If on the basis of relevant and acceptable evidence the petitioner succeeds in establishing that he was actually born only on 5.12.1088 the fact that he would have been below 5 years of age at the time of his admission into Standard I cannot constitute a valid ground for turning down his request for correction of the entry in his S.S.L.C...... It is difficult to understand on what principle the petitioner can be penalised for the incorrectness of an entry given by his guardian at a time when he was a minor child of about four years and how it can be said that an advantage has 12 ## **W.A. No. 245 of 2010** been gained by the petitioner by making a wrong representation.” 21. We are of the view that when the admission is made, the person connected would obviously be a minor. Particularly also take note of the fact that as far as this case is concerned, there is no question of violation of Rule 10B also. Having regard to the totality of circumstances, we are of the view that the Appeal is without merit. 22. Accordingly this Writ Appeal is dismissed. ## **K.M. JOSEPH, JUDGE** ## **M. L. JOSEPH FRANCIS, JUDGE.** dl/